Injustice System

Fox News' Judge Andrew Napolitano on repealing the 17th Amendment, "constitutional activism," and his bestselling new book Lies the Government Told You.

Since joining the Fox News Channel as a legal analyst in 1998, former New Jersey Superior Court Judge Andrew P. Napolitano has emerged as one of America’s most prominent champions of limited constitutional government. He’s the author of five bestselling books, including Constitutional Chaos and Dred Scott’s Revenge: A Legal History of Race and Freedom in America, the regular fill-in host for Fox News superstar Glenn Beck, and the host of his own popular FoxNews.com show, FreedomWatch.

Reason: You begin your book with the Declaration of Independence and end with the debate over ObamaCare, hitting almost every point in between. Has the government been lying to us all along?

Judge Andrew Napolitano: Yes, the government has been lying to us all along. Think about it. The very same generation—in many instances the same human beings—that wrote “Congress shall make no law...abridging the freedom of speech” also wrote in the Alien and Sedition Acts just 10 years into the country that you can go to jail if we don’t like what you say. These guys did things which were directly contrary to first principles. And among them was the obviously erroneous, self-serving proclamation that “all men are created equal.” They weren’t! I mean, half those guys owned slaves, even the person who wrote that phrase owned slaves. He didn’t buy them—he inherited them—but he owned them.

Reason: You emphasize the role of crisis and war in government lying.

Napolitano: War is the health of the state. That is a self-evident truth. Because in wartime people unite behind whoever the commander in chief is. They part with their wealth more easily. They accept restrictions on their personal behavior. We now know—economists have demonstrated—that none of the rationing during World War II was necessary. That wasn’t done to have coffee or sugar or leather for the soldiers. That was done to keep people at bay, to give them a feeling that they were cooperating in the war effort. Any type of crisis is an opportunity for the government to take liberty and take property and turn those into power for itself.

Reason: Each of your chapters is devoted to a different government lie. I was struck by how many of the lies were direct quotes from the Declaration of Independence or the Constitution.

Napolitano: The biggest lie is not one of those chapters, it’s all of the chapters taken together: lack of fidelity to the Constitution. When they take an oath to uphold the Constitution they don’t really mean it. Just the other day, this congressman from Illinois, Phil Hare, said “I don’t worry about the Constitution.”

Reason: Rep. James Clyburn once told you that the Constitution doesn’t apply to most of what Congress does.

Napolitano: Clyburn, bless his soul, was candid but wrong. “Where in the Constitution is health care prohibited to the Congress?” he said. This was prompted by a question on-air from me about where in the Constitution is the federal government authorized to regulate health care. When he turns that around, he misunderstands the Constitution. The Congress isn’t a general legislature that can regulate any behavior, tax any event, it’s a legislature of precisely limited powers.

Reason: It was a rare example of some honesty from the government.

Napolitano: You know what he said later in that interview? He said we do what we think the people want and let your buddies in black robes—referring to my former colleagues on the bench—worry about whether or not it’s constitutional. Again, he’s being very candid. That allows members of Congress to go back home and say, “We got you this. The courts took it away.” So they win both ways. They don’t have to pay for it, because the courts took it away, and they win political support because they tried to give it to the people.

Reason: You agree with Rep. Clyburn in a way. You call for judges to be “constitutional activists.” That’s very different from a lot of conservatives, who advocate judicial restraint.

Napolitano: I am not a conservative, I am a libertarian. I believe in the primacy of the individual over the state. I believe in ironclad fidelity to the Constitution and I believe in the Natural Law, that there are areas of human behavior that are utterly and totally immune from government regulation. Just because the majority rules doesn’t mean the majority is right. That’s why we have an independent judiciary. It is to be the non-democratic or even anti-democratic branch of government. Otherwise there would be nothing to prevent the tyranny of the majority from taking our liberty or property just because they wanted it.

Reason: Is that a useful check on the government’s lies?

Napolitano: It’s a check as long as judges do what they’re supposed to do. When judges do what they did after FDR threatened to pack the Court and just supinely find ingenious ways to claim that something is interstate commerce when in fact it’s just wheat grown in somebody’s backyard, to declare that interstate commerce so the Congress has the power to regulate is a lie and a perversion of the judicial process.

If I were free to do so, one of the things I would change right away is to put the burden on the state to prove the morality, lawfulness, and constitutionality of its behavior. Look, I believe the only legitimate function of government is to preserve our freedom. And everything else the government does is illegitimate. But I would let it make the argument in court. What we have is the opposite. The government doesn’t even have to make the argument in court. It is presumed that whatever they do, no matter what it is, no matter what it takes, no matter what it compels, no matter what it steals, is constitutional just because the government has done it.

Reason: You end the book with a call for a “major political transformation.” What is the single most important reform?

Napolitano: I would repeal the 17th Amendment [which provides for the popular election of U.S. senators]. Can an amendment to the Constitution itself be unconstitutional? Yes, that one. If you read Madison’s notes from the constitutional convention, they spent more time arguing over the make-up of the federal government and they came up with the federal table. There would be three entities at the federal table. There would be the nation as a nation, there would be the people, and there would be the states. The nation as a nation is the president, the people is the House of Representatives, and the states is the Senate, because states sent senators. Not the people in the states, but the state government. When the progressives, in the Theodore Roosevelt/Woodrow Wilson era, abolished this it abolished bicameralism, the notion of two houses. It effectively just gave us another house like the House of Representatives where they didn’t have to run as frequently, and the states lost their place at the federal table.

That was an assault, an invasion on the infrastructure of constitutional government. Even kings in Europe had to satisfy the princes and barons around them. And that’s how they lost their power, or that’s how their power was tempered. Congress believes it doesn’t have to satisfy anybody. Its only recognized restraint is whatever it can get away with.

Reason: What do you make of the recent attacks on the idea of states’ rights, linking it directly to evil things like the defense of slavery?

Napolitano: Probably the best act of nullification of which I’m aware, whereby a state government nullified an act of the federal government, was the state of Massachusetts nullifying the Fugitive Slave Act. The state of Massachusetts said don’t even try it here. We’ll prosecute anybody that kidnaps anybody else in this state. So nullification has a beneficial and salutary history as well as the sordid one.

Reason: You wrote that the notion of being innocent until proven guilty is “probably the least questioned and most believed government lie.”

Napolitano: It’s drawn from my professional experience. The defendant is dragged into the courtroom and the jurors assume he’s guilty. Why would the government be wasting our time? When I would charge jurors—explain the law to them—I would insist on saying, “in order for him to be convicted you must be satisfied beyond a reasonable doubt and to a moral certainty of his guilt.” The state always objected to that phrase (“and to a moral certainty”) until I pulled out the case law by appellate courts saying that it was perfectly appropriate.

There are some horror stories in my book of people who were punished without trial. In the Herrera case, [defendant Leonel Torres Herrera] was executed, with the state knowing that somebody else had committed the crime. They just didn’t care because he filed his petitions too late. Chief Justice John Roberts, when he was Judge Roberts, was asked at his confirmation hearing, does the Constitution prohibit the execution of the innocent by the state? He paused and said yes. Who could possibly pause? If it prohibits anything it prohibits that.

Reason: Are you optimistic about any of this? It’s a pretty depressing book.

Napolitano: I always tell friends that my books don’t have a happy ending. I am torn. The pre-Vatican II Catholic side of me reminds me that hope is a virtue and I should always be optimistic. But I’m not naive. I see what’s happening.

Bonus Reason.tv Video: Watch Judge Andrew Napolitano deliver the keynote address at "Reason in D.C." in October 2007, where he declared, "George W. Bush has shown less fidelity to the Constitution than any president since Abraham Lincoln." (You may also watch the video here.)